Carter (Alesha) v. State ( 2014 )

 would have been different. Strickland v. Washington, 466 U.S. 668, 687-
88 (1984); Warden v. Lyons, 100 Nev. 430, 432-33, 683 P.2d 504, 505
(1984) (adopting the test in Strickland). To demonstrate prejudice
regarding the decision to enter a guilty plea, a petitioner must
demonstrate a reasonable probability that, but for counsel's errors,
petitioner would not have pleaded guilty and would have insisted on going
to trial. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985); Kirksey v. State, 112
Nev. 980, 988, 923 P.2d 1102, 1107 (1996). Both components of the
inquiry must be shown, Strickland, 466 U.S. at 697, and the petitioner
must demonstrate the underlying facts by a preponderance of the
evidence, Means v. State, 120 Nev. 1001, 1012, 103 P.3d 25, 33 (2004). We
give deference to the district court's factual findings if supported by
substantial evidence and not clearly erroneous but review the court's
application of the law to those facts de novo. Lader v. Warden, 121 Nev.
682, 686, 120 P.3d 1164, 1166 (2005).
First, appellant claimed that her trial counsel was ineffective
for failing to investigate and object to alleged errors in the presentence
investigation report and argue for probation. Appellant claimed that the
presentence investigation report erroneously stated that she had three
prior prison terms A review of the presentence investigation report
indicates that appellant received terms of imprisonment in two cases to
run concurrently. 3 Despite the apparent factual error, appellant failed to
3 The State asserted a third case involved a term of imprisonment
but the presentence investigation report indicates that the third case
identified by the State involved a gross misdemeanor and a jail sentence.
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demonstrate that there was a reasonable probability of a different
outcome at sentencing had counsel objected. The district court made it
clear that it was sentencing appellant based on her very lengthy criminal
history, which included 5 felony convictions, 1 gross misdemeanor, and 20
misdemeanors. Therefore, we conclude that the district court did not err
in denying this claim.
Second, appellant claimed that her trial counsel was
ineffective for failing to object to information about new out-of-state
charges at sentencing. Appellant claimed that the new charges should not
have been considered because they were later dismissed. Appellant failed
to demonstrate that her trial counsel's performance was deficient or that
she was prejudiced. Appellant's counsel did argue that the out-of-state
charges would likely be dismissed. The district court expressly stated that
the out-of-state charges were not considered in the sentencing decision.
Therefore, we conclude that the district court did not err in denying this
claim.
Third, appellant claimed that her trial counsel failed to
adequately communicate with her and that trial counsel's own legal
troubles rendered him ineffective. Appellant failed to demonstrate that
her trial counsel's performance was deficient or that she was prejudiced.
Appellant failed to demonstrate what further communication was required
or how it would have had a reasonable probability of altering the outcome
of the proceedings. The fact that trial counsel had legal troubles develop
during his representation of appellant does not by itself demonstrate
ineffective assistance of counsel and appellant has not provided any
specific instances of how counsel's performance was affected by trial
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counsel's legal troubles. Therefore, we conclude that the district court did
not err in denying this claim.
Fourth, appellant claimed that her trial counsel failed to
advise her of the appeal process. Appellant failed to demonstrate that her
counsel's performance was deficient or that she was prejudiced.
Appellant, who acknowledged reading and understanding the written
guilty plea agreement, waived her right to appeal in the written guilty
plea agreement. Therefore, we conclude that the district court did not err
in denying this claim.
Next, appellant claimed that her plea was invalid. A guilty
plea is presumptively valid, and a petitioner carries the burden of
establishing that the plea was not entered knowingly and intelligently.
Bryant v. State, 102 Nev. 268, 272, 721 P.2d 364, 368 (1986); see also
Hubbard v. State, 110 Nev. 671, 675, 877 P.2d 519, 521 (1994). In
determining the validity of a guilty plea, this court looks to the totality of
the circumstances. State v. Freese, 116 Nev. 1097, 1105, 13 P.3d 442, 448
(2000); Bryant, 102 Nev. at 271, 721 P.2d at 367.
Appellant claimed that her plea was invalid because she
believed that she would receive probation. She noted that the State had
agreed not to oppose probation in the plea agreement. Appellant failed to
carry her burden of demonstrating her plea was invalid. In her petition,
appellant acknowledged that she was not promised probation but only had
a hope in receiving probation. Although the parties agreed that the State
would not oppose probation, appellant was informed that sentencing
decisions were left in the district court's discretion and no promise of
probation was made. Appellant's mere subjective belief regarding
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sentencing was insufficient to invalidate her decision to enter a guilty
plea. Rouse v. State, 91 Nev. 677, 679, 541 P.2d 643, 644 (1975).
Therefore, the district court did not err in denying this claim. Accordingly,
we
ORDER the judgment of the district court AF'FIRMED. 4
A Ct_A pet,t;
Hardesty
j.
J.
Douglas
OW-4V
Cherry
cc: Hon. Douglas W. Herndon, District Judge
Alesha Michelle Carter
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
4Wehave reviewed all documents that appellant has submitted in
proper person to the clerk of this court in this matter, and we conclude
that no relief based upon those submissions is warranted. To the extent
that appellant has attempted to present claims or facts in those
submissions which were not previously presented in the proceedings
below, we have declined to consider them in the first instance.
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(0) I 94F1A Feija).